- (1.) SYED Zafar Moonis has accepted notice on behalf of Respondent. He prays for and is allowed four weeks' time to file counter affidavit. The Appellant will have one week thereafter to file rejoinder affidavit.
(2.) LIST on 27th September, 2011.
(3.) IN order to satisfy ourselves, we raised a question to Shri Laxmi Kumaran appearing for the Appellant as to whether this Central Excise Appeal against the order of Custom, Excise and Service Tax Appellate Tribunal dated 4.7.2011, is maintainable in the High Court. Shri Laxmi Kumaran submits that under Section 35 -G of the Central Excise Act, 1944 an appeal lies to the High Court against any orders passed in appeal by the Appellate Tribunal on or after 1st July, 2003, not being an order relating, among other things, to the determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment. He submits that the appeal in the present case relates to the waiver of pre -deposit for hearing the appeal by Custom, Excise and Service Tax Appellate Tribunal. Under the proviso to Section 35 -F this appeal not raising any question having relation to the rate of duty of excise or to the value of goods for the purposes of assessment is maintainable in High Court. He has relied upon a judgment of Supreme Court in Navin Chemicals MFG and Trading Company Ltd. v. Collector of Customs, 1993 (68 E.L.T. 3 (SC) in which the Supreme Court considered the question of maintainability of the appeal in the light of Section 129 -C and held in paragraphs 7, 11 and 13 as follows: 7. The controversy, therefore, relates to the meaning to be given to the expression 'determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment'. It seems to us that the key lies in the words 'for purposes of assessment' therein. Where the appeal involves the determination of any question that has a relation to the rate of customs duty for the purposes of assessment that appeal must be heard by a Special Bench. Similarly, where the appeal involves the determination of any question that has a relation to the value of goods for the purposes of assessment, that appeal must be heard by a Special Bench. Cases that relate to the rate of customs duty for the purposes of assessment and which relate to the value of goods for the purposes of assessment are advisedly treated separately and placed before Special Benches for decision because they, more often than not, are of importance not only to the importers who are parties thereto but also to many other importers who import or propose to import the same or similar goods. Since the decisions of CEGAT in such matters would have wide application they are, by the terms of the statute, to be rendered by Special Benches. The phrase "relation to" is, ordinarily, of wide import but, in the context of its use in the said expression in Section 129C, it must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for the purposes of assessment. 11. It will be seen that Sub -section (5) uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the purposes of this Sub -section'. The Explanation says that the expression includes the determination of a question relating to the rate of duty; to the valuation of goods for purposes of assessment; to the classification of goods under the Tariff and whether or not they are covered by an exemption notification; and whether the value of goods for purposes of assessment should be enhanced or reduced having regard to certain matters that the said Act provides for. Although this Explanation expressly confines the definition of the said expression to Sub -section (5) of Section 129D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification of goods and as to whether or not they are covered by an exemption notification relates directly and proximately to the rate of duty applicable thereto for purposes of assessment. Whether the value of goods for purposes of assessment is required to be increased or decreased is a question that relates directly and proximately to the value of goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 13. The order of the Additional Collector under appeal before CEGAT in the present case did not have any direct or proximate relation, for the purposes of assessment, either to the rate of duty applicable to the said goods or to the value thereof. All that the Additional Collector's order did was to confiscate the said goods allowing to the Appellant the option of redeeming them upon payment of a fine of Rs. 10,000/ -. That the Appellant might avail of the option, pay the fine and clear the said goods, when questions as to the rate of duty and value for purposes of assessment might possibly arise, is far too remote a contingency to satisfy the test that is laid down. ;